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Aurel v. Holly Lee Pierce Crnp

United States District Court, D. Maryland

June 4, 2019

MICH AUREL, #317239, Plaintiff,
v.
HOLLY LEE PIERCE CRNP, WEXFORD HEALTH SOURCES, INC., Defendants.

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge.

         Self-represented plaintiff Mich. Aurel, confined at North Branch Correctional Institution (“NBCI”), asserts civil rights violations under 42 U.S.C. § 1983, committed by prison health care provider Wexford Health Sources, Inc. (“Wexford”) and Wexford employee Holly Lee Pierce, a Certified Registered Nurse Practitioner. ECF 1.[1] Aurel alleges that he has been denied treatment for a multitude of ailments, including abdominal pain; chronic constipation; a colon infection; blood in his stool; an ulcer; infections of the kidneys, stomach, liver, blood, urinary tract, pancreas and large and small intestines; pain in the right hip, right shoulder, and lower back; inability to urinate; prostate and thyroid cancer; liver pain; a liver cyst; throat, neck and chest pain; hoarseness; hypothyroidism; shortness of breath; swollen lymph nodes; and nerve pain. Further, Aurel claims that he was improperly given an MRI without contrast. In addition, he complains about the presence of a custody officer during examination, asserting that it is a violation of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub.L. 104-191. And, he complains that he is improperly required to buy his own hemorrhoid cream, artificial tears, multivitamins, Motrin, antifungal cream, Tylenol, and aspirin. ECF 1.

         Aurel seeks both compensatory and injunctive relief and punitive damages. He requests a colonoscopy (ECF 1 at 3); an MRI with contrast (id. at 4); a liver biopsy (id. at 5); and treatment to find the underlying cause of his chest pain and shortness of breath. Id. at 6.[2]

         In response to the Complaint, Wexford and Pierce have moved to dismiss or, in the alternative, for summary judgment. ECF 15. The motion is supported by a memorandum (ECF 15-3) (collectively, the “Motion”) and exhibits, including extensive medical records (ECF 15-4) and affidavits, including an Affidavit from NBCI's acting Medical Director, Asresahegen Getachew, M.D. See ECF 15-5. Aurel was advised of his right to respond and oppose the dispositive motion (ECF 16) and has done so. ECF 19. He also submitted an exhibit. The defendants filed a reply (ECF 21), along with additional affidavits, including one from Pierce and one from William Beeman, R.N., whom Aurel wrongly accused as having been terminated from a hospital for falsifying medical records.[3]

         Aurel filed three additional exhibits (ECF 26, ECF 27, ECF 28), which include two affidavits from him. He appears to attempt to amend his Complaint to add new medical defendants and new allegations concerning medications, destruction of sick call slips, destruction of stool cards, denial of a CT scan, denial of medical recommendations by health care providers at University of Maryland Hospital, refusal to act on a physician's recommendation, denial of pain medication, and denial of assistive devices, including a back brace, cane, and walker.[4]

         No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2018). For the reasons stated below, I shall grant the Motion.[5]

         I. Background

         The parties do not dispute that Aurel is in his early fifties with a significant medical history of hypothyroidism, asthma, constipation, prostate enlargement, cough, hyperlipidemia, and esophageal reflux. ECF 15-5 (Getachew Aff.), ¶ 4. Defendants further note that Aurel has a mental health diagnosis of hypochondria and somatic symptom disorder. Id., ¶¶ 5, 8. Because of his conditions, Aurel is a chronic care patient who is scheduled for regular evaluation by physicians and mid-level health care providers who manage and monitor his conditions. Id. ¶¶ 9, 22.

         Prior to January 1, 2019, Defendant Wexford was a private health care provider under contract with the Maryland Department of Public Safety and Correctional Services (“DPSCS”) to provide primary health care services and utilization management services for Maryland prisoners. ECF 15-5, ¶ 1. Defendant Pierce was employed by Wexford to provide nurse practitioner services to prisoners at NBCI. ECF 21-1 (Pierce Aff.), ¶ 1.

         A. Aurel's Allegations

         Aurel's illnesses, both real and perceived, have been addressed in several prior lawsuits filed by Aurel in this Court. See, e.g., Aurel v. Wexford, et al., Civil Action ELH-15-1127, consolidated with ELH-15-1797 (D. Md.) (summary judgment granted to medical defendants; complaints of abdominal, throat and chest pain, coughing, blurred vision, vomiting, blood in stool, constipation, weakness, ear pain, cancer of the throat, stomach, pancreas, gallbladder, eye and liver); Aurel v. Wexford, et al., Civil Action ELH-16-1293 (D. Md.) (summary judgment granted to medical defendants; complaints of lower back and head pain stemming from 2009 fall, destruction of sick call requests, and denial of back brace); Aurel v. Wexford, et al., Civil Action ELH-18-1251 (D. Md.) (summary judgment granted to medical defendants; complaints of lower back pain, abdominal pain, throat pain, tongue infection, thyroid, liver, prostate and colon cancers, gastrointestinal problems, including constipation, ulcers and blood in stool, and hepatitis A & B infection). Examination of these prior cases demonstrates that Aurel's concerns that he suffers from physical ailments, although mostly unfounded, are legion.

         With regard to his claims against Nurse Practitioner Pierce, Aurel alleges that Pierce (1) bears responsibility for limiting his MRI to a procedure without contrast dye, making it impossible to show “nerves and veins in the body” and precluding proper diagnoses; (2) refused to provide him medication for nerve pain and arthritic pain; and (3) failed to follow up on his sick call slips. ECF 1 at 3-4.

         In addition to Aurel's claims against Nurse Pierce, Aurel states the medical notes found at ECF 15-4 at 37, 39, 41, 43, 45, 47, 59 and 51 are falsified because the names and signatures of those who were to provide the medications listed are merely printed onto a blank form, ECF 19 at 2, ¶ 12(iii); nothing in the record proves he is non-compliant with medication (id. at ¶ 20); and the record does not show any medications dispensed since August 2018. Id. at ¶ 19.

         B. Defendants' Assertions

         Wexford contends that it is entitled to dismissal because Aurel fails to identify unconstitutional policies and procedures that were the motivating force behind its employee's alleged denial of medical care, and because the doctrine of respondeat superior is not recognized in civil rights actions brought pursuant to 42 U.S.C. § 1983. ECF 15-3 at 15-16.

         Pierce contends that she did not personally participate in any wrongdoing, that the treatment rendered did not violate the Eighth Amendment's prohibition against cruel and unusual punishment, and that Aurel, a frequent litigator in this Court, is engaged in “claim splitting.” Id. at 9-12, 18-24. Defendants also argue jointly that a violation under HIPAA has not occurred, and that any allegations of medical negligence are not judicially actionable in this forum. Id. at 13-14, 16-17.

         The medical records provide the following information, summarized in an Affidavit submitted by Asresahegn Getachew, M.D., Wexford's acting Medical Director at NBCI.

         Aurel is obsessive and fixates on certain symptoms, then wrongly diagnoses himself, sometimes amplifying his symptoms on presentation to health care providers. ECF 15-5, ¶ 8. He confuses symptoms he has reported and treatments and medications received and refuses to accept clinical evidence-based diagnoses and treatment plans, particularly when that evidence contradicts his own diagnoses. Id.[6] Dr. Getachew also avers that, despite Aurel's allegations that lab results have been fabricated, his lab work is performed by Garcia Laboratory in Michigan and is not fabricated. Id. Plaintiff has been assessed by psychiatry as hypochondriacal. Id.

         Dr. Getachew also avers that Aurel photocopies and resubmits multiple, repetitive sick call slips for the same issues weekly and sometimes daily.[7] Until December of 2017, a mid-level provider evaluated those slips. In December 2017, that evaluation was changed to monthly. In November of 2018, Aurel was returned to a regular chronic care clinic (“CCC”) schedule, wherein he is seen by a provider every three months. His sick call slips are reviewed when submitted and he is seen for regular sick call within 48-72 hours (the same procedure for all prisoners), but repetitive slips are held for review during CCC. Id., ¶ 9. Because Aurel is non-complaint with medications, the pharmacy must sign for his “keep on person” medications and CCC medications are required to be directly observed (“DOT” or “directly observed therapy”) when taken. Id., ¶ 10.

         Aurel does not have thyroid, prostate, colon, or eye cancer, as demonstrated by lab results. Id., ¶ 11. His 2016 colonoscopy was “unremarkable.” Id. But, subsequent guaiac stool tests were positive for blood in his stool. Id. At the time of Dr. Getachew's Affidavit in November 2018, he said that plaintiff was “being scheduled for a gastroenterology consult” because of his stool tests. Id. Aurel states that he had the gastroenterology consult on December 24, 2018. ECF 22 at 1, ¶ 2.[8]

         Aurel's vision was tested in February of 2018 and, other than needing corrective lenses, Aurel's exam was unremarkable. ECF 15-5, ¶ 11. Aurel's gums, throat and tongue have been evaluated by both medical and dental providers and are unremarkable, and his lymph nodes are not enlarged. Id. He has been educated on these conditions but refuses to believe his medical providers' assessments. Id.

         In addition, Dr. Getachew avers that Aurel has chronic medical conditions for which he is receiving regular medical care, including hypothyroidism, asthma, and hyperlipidemia. Id. ¶ 12. His hypothyroidism is well controlled with medication and his thyroid levels are normal. Aurel's asthma is stable and controlled with an albuterol inhaler, and his hyperlipidemia is treated with a statin medication and fiber supplement. Id.

         Further, Dr. Getachew avers that, notwithstanding plaintiff's frequent complaints of low back and right hip pain radiating down his right leg to his foot, Aurel has no anatomical disorder causing such pain. Id., ¶ 13. An x-ray of his LS spine and right hip were normal. Aurel does, however, have some spinal changes that are being monitored. The July 2018 MRI of the cervical spine revealed spondylotic changes[9] at ¶ 6-7, resulting in a moderate right and mild left foraminal stenosis. Id.[10]

         Although the MRI of Aurel's thoracic spine was normal, the MRI of his lumbar spine revealed mild spondylotic changes at ¶ 4-5 where there is a small tear and broad disc bulge. Dr. Carls, an orthopedist, has recommended the reevaluation of Aurel by a spine surgeon as a result of this condition, which Dr. Getachew identified as a pinched nerve. Id. Dr. Getachew notes that Dr. Carls first recommended conservative treatment with stretching exercises, and that Dr. Getachew reviewed the MRI results with Aurel and specifically told him that he would benefit by exercise, strengthening his core muscles, and losing weight. Id. at ¶ 15. Although physical therapy helped in July 2017, Aurel no longer wants physical therapy. Id. In July 2018, Dr. Getachew ordered an MRI of the cervical and thoracic spine, without contrast. Id. Dr. Getachew opines that Aurel's argument that the MRI should have included contrast is incorrect as there was no necessity for an MRI with contrast. Id.

         Dr. Getachew also avers that Aurel has been treated with Neurontin, Baclofen, Cymbalta, Mobic, and Robaxin for pain, but he exhibits a certain amount of drug seeking behavior, as he consistently requests to be put on Vicodin and Tramadol. Id., ¶ 16. Dr. Getachew also notes that Aurel has received medications for neuropathic pain, including amitriptyline, Neurontin, and Cymbalta, and is currently prescribed Nortriptyline. Id. Further, Aurel is provided Miralax to address his constipation and abdominal pain. Id., ¶ 17. A January 2018 ultrasound was unremarkable, except for indications of hepatic steatosis (fatty liver), but liver function tests remain normal, although a benign liver cyst has grown, Id.

         No clinical evidence supports Aurel's complaints of frequent urination, and his prostate antigen tests (“PSAs”) are normal. Id., ¶ 18. Aurel is not diabetic, and he receives Terazosin to treat urinary hesitancy. Id. The Court notes that Dr. Getachew's averment that Aurel does not have an enlarged prostate upon examination., id., is somewhat contradicted by a July 16, 2015 CT scan which showed slight enlargement of the prostate. ECF 19-1 at 3.

         Aurel had been prescribed lozenges for his sore throat, which may be due to his use of inhalers. But, these were discontinued after he reported they did not help. His allergies are treated with Zyrtec. Id., ¶ 19.

         Dr. Getachew also asserts that the DPSCS policy at NBCI requires prisoners to purchase over-the-counter medications and hygiene items from the commissary. Id., ¶ 21. If a prisoner is indigent, he will be prescribed medically indicated medications otherwise available from the Commissary. Aurel does not have a current medical need for hemorrhoid ointment, antifungal cream, artificial tears, multivitamins, Motrin, Tylenol, and aspirin and these products are not provided to him. Id.

         Additional facts are included in the Discussion.

         II. Standard of Review

         A.

         A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom. McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual allegations contained in the complaint” and must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Reyes v. Waples Mobile Home Park Ltd. P'ship, 903 F.3d 415, 423 (2018); Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011).

         Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

         Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Twombly, 550 U.S. at 573; see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002) (stating that a complaint need only satisfy the “simplified pleading standard” of Rule 8(a)). But, the Supreme Court has explained that a “plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted; alteration in Twombly).

         Moreover, to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Twombly, 550 U.S. at 570); see Paradise Wire & Cable Defined Benefit Pension Fund Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019); Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “But where the well-pleaded facts do not permit the court to infer more than the mere ...


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